Catholic Legal Perspectives

Catholic Legal Perspectives

Catholic Legal Perspectives Bill Piatt Professor of Law and Former Dean St. Mary s University School of Law Carolina Academic Press Durham, North Carolina

Copyright 2012 Bill Piatt All Rights Reserved Library of Congress Cataloging-in-Publication Data Piatt, Bill. Catholic legal perspectives / Robert William Piatt, Jr. p. cm. Includes bibliographical references and index. ISBN 978-1-61163-138-8 (alk. paper) 1. Canon law. 2. Catholic Church. 3. Ecclesiastical law. I. Title. KBU2189.P53 2012 349.73'088282--dc23 2011052719 Carolina Academic Press 700 Kent Street Durham, NC 27701 Telephone (919) 489-7486 Fax (919)493-5668 www.cap-press.com Printed in the United States of America

To my grandchildren: Fallyn, Max, Rory, William, Julia, and Noah

Contents Acknowledgments xi Chapter 1 Introduction to the Sources of Law and Catholic Perspectives 3 A. For Further Thought 6 Chapter 2 Family Issues 9 A. Marriage 9 1. Who Can Marry? 9 a. Legal Requirements 9 b. The Catholic Church Views Marriage 11 1) USCCB: pastoral letter marriage: love and life in the divine plan (Abridged) 12 B. Same Sex Marriage 18 1. State Approaches and the Federal Response 18 2. The Catholic Church Opposes Same Sex Marriage 19 3. Constitutional Issues 27 a. Full Faith and Credit 27 In re the Marriage of Cook v. Cook 28 In re the Marriage of J.B. and H.B. 32 Texas v. Naylor 40 b. Equal Protection 44 Loving v. Virginia 45 Varnum v. Brien 48 C. Divorce, Annulment, and Separation 56 1. The Legal System 56 2. Teachings of the Church Regarding Divorce, Separation, and Annulment 59 3. The Role of the Catholic Lawyer or Judge in Divorce Proceedings 61 D. For Further Thought 64 Chapter 3 Life and Death 67 A. Abortion 67 1. Catholic Church Position 68 2. Historical Perspectives 73 3. Roe v. Wade 77 Roe v. Wade 77 4. Upholding Some Abortion Restrictions 90 Planned Parenthood of Southeastern Pennsylvania v. Casey 91 vii

VIII CONTENTS Casey v. Planned Parenthood of Southeastern Pennsylvania 91 Gonzales v. Carhart 98 Gonzales v. Planned Parenthood Federation of America, Inc. 98 5. Judicial Bypass 112 6. Abortion, Demographics, and Race 114 7. Harm to Women 116 B. Stem Cell Research 119 Sherley v. Sebelius 121 C. Miscellaneous Life Issues 130 D. Eugenics and Sterilization 139 Buck v. Bell 142 Skinner v. Oklahoma 144 E. Euthanasia 147 Washington v. Glucksberg 150 Gonzales v. Oregon 158 Bush v. Schiavo 162 F. Death Penalty 169 Gregg v. Georgia 174 G. For Further Thought 190 Chapter 4 Who Is Allowed to Live and Work in the U.S.A.? Immigration Issues 193 A. The Catholic Church Views Immigration 193 B. United States Immigration Law and Policy 194 1. Who Are We? 195 2. Extreme Positions: Bill Piatt, Immigration Reform from the Outside In 196 a. Historical Extremes 196 b. Contemporary Extremes 198 1) Closed border approaches 198 2) Open border plus amnesty 200 3. Formal Legal Structure 200 a. Citizenship 200 b. Permanent Residents 204 1) Family Relationships 205 2) Employment-Based Immigrants 205 3) Diversity Immigrants 206 4) Refugees & Asylees 206 c. Non-Immigrant Categories 208 d. Exclusions & Removals 208 C. The American Bishops Respond 208 1. USCCB: Welcoming the Stranger Among Us: Unity in Diversity 208 A Statement of the U.S. Catholic Bishops 208 2. USCCB: Frequently Asked Questions About the Catholic Church s Position on Immigration 211 D. Toward Reform 212 1. Bill Piatt: Immigration Reform from the Outside In 213 a. Moving Inward 213 1) Why do people want to come to the United States? 213 2) What impact do new arrivals have on the economy? 213

CONTENTS ix 3) What would be the costs and benefits of attempting to remove those who are here illegally? 214 4) How do we prioritize immigration enforcement efforts? 214 5) What role should the federal, state and local governments play? 214 6) To what extent should we rely upon private immigration enforcement? 214 7) How much are we willing to impose sanctions upon citizens in the name of immigration control? 214 8) What impact does immigration have on race relations in the United States? 215 b. Hope for Resolution 215 c. Conclusion 216 E. For Further Thought 216 Chapter 5 Feeding the Hungry, Sheltering the Homeless, Treating the Sick 221 A. Feeding the Hungry 221 B. Housing 224 C. Health Care 224 Florida, v. United States Department of Health and Human Services 233 Virginia v. Sebelius 241 E. Education 243 Goss v. Lopez 243 Plyler v. J. and R. Doe 244 Texas v. Certain Named and Unnamed Undocumented Alien Children 244 Zelman v. Simmons-Harris 248 E. Public Assistance 255 Fuentes v. White 255 F. For Further Thought 259 Chapter 6 Applications 261 A. The Role of Education and Educators 261 1. Law Schools 261 a. Bill Piatt: Catholicism and Constitutional Law: More Than Privacy in the Penumbras 264 2. Undergraduate Institutions 278 3. Student Involvement 278 Hastings Christian Fellowship v. Martinez 279 B. The Role of Bench and Bar 287 1. Lawyers 287 2. Judges 291 C. The Role of the Church 292 D. Next Steps 293 E. For Further Thought 296 Selected Bibliography 299 Books 299 Articles 299 Reports 302 Statements & Press Releases 303

X CONTENTS Roman Catholic Church Publications & Documents 304 Statutes & Acts 307 Cases 307 Blogs & Opinions 308 Websites Generally 308 Index 311

Acknowledgments I am grateful to my research assistant, Rachel Ambler, and to my secretary, Maria Vega, for their assistance. The following entities and publications granted permission to reprint portions of previously-published material included in this book. I wish to thank them for the permission, and for their cooperation and assistance: Archdiocese of San Antonio, Texas The Journal of Catholic Social Thought The Scholar: St. Mary s Law Review on Minority Issues United States Conference of Catholic Bishops xi